Cite as: 513 U. S. 432 (1995)
Thomas, J., dissenting
establishes error, the government must affirmatively persuade the court of the harmlessness of that error. Ante, at 444. Without explaining why it favors habeas plaintiffs over other plaintiffs, the Court thus treats the question of causation as an affirmative defense.
Requiring the habeas petitioner to bear the risk of non-persuasion not only accords with the usual rules of litigation, but also is compelled by what we have said about the nature of habeas relief. "When the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot v. Estelle, 463 U. S. 880, 887 (1983). We have acknowledged that the "writ strikes at finality," one of the "law's very objects," Mc-Cleskey v. Zant, 499 U. S. 467, 491 (1991), and that when a habeas petitioner obtains a new trial, the government is put at a disadvantage "through the 'erosion of memory' and 'dispersion of witnesses' that occur with the passage of time," Kuhlmann v. Wilson, 477 U. S. 436, 453 (1986) (plurality opinion) (quoting Engle v. Isaac, 456 U. S. 107, 127-128 (1982)). Our habeas cases indicate that upsetting the finality of judgments should be countenanced only in rare instances. See, e. g., Brecht v. Abrahamson, 507 U. S. 619, 633 (1993) (noting that "the writ of habeas corpus has historically been regarded as an extraordinary remedy").
We have ample cause to be wary of the writ. Our criminal law does not routinely punish the innocent. Instead, our Constitution requires proof of guilt beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). As a result, the overwhelming majority of the innocent will never reach the habeas stage, since they will not have been found guilty at trial. Appeals and possible state postconviction relief further reduce the possibility that an innocent is in custody. The presumption of finality that we apply in habeas proceedings is therefore well founded.
Our habeas jurisprudence has also been informed by a proper recognition of the affront to a State when federal
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